Sec.304 B - Reason of Death not established - Non- examination of the Doctor - Non- production of Vicesar report - Police , Magistrate - Prosecution all committed grave mistake - resulted in Acquittal under sec. 304 B I.P.C. = We are of the opinion that the conviction of the accused undersection 498A calls for no interference as there is concurrent finding byboth the courts below based on evidence that the accused husband and hisrelatives subjected Babita Devi to cruelty as explained under section 498AIPC.[4]13. The only question is – whether the prosecution has succeeded inestablishing the commission of offence under section 304B. =

No doubt the prosecution has adduced sufficient evidence to establishall other facts necessary to prove the offence under section 304B IPCexcept the cause of death. As seen from the trial court judgment there areno injuries on the body of the deceased. Even according to the FirstInformation Report the death was caused due to poisoning which the deceasedwas compelled to consume. In such circumstances, the non-examination ofthe doctor who conducted the post-mortem coupled with the failure toproduce the Forensic Laboratory Report regarding the examination of visceraof the deceased leaves a gaping hole in the case of the prosecutionregarding the nature of the death of Babita Devi. In the circumstances, we are of the opinion that the survivingappellant must be acquitted of the offence under Section 304B. Appeal isallowed to that extent.17. Before parting with the appeal, we wish to place on record ouranguish regarding the inadequacy of investigation, the failure to dischargethe responsibility on the part of the public prosecutor and the Magistratewho took cognizance of the offence under Section 304B. The InvestigatingOfficer who submitted the charge sheet ought not to have done it withoutsecuring the viscera report from the forensic lab and placing it before theCourt. Having regard to the nature of the crime, it is a very vitaldocument more particularly in the absence of any direct evidence regardingthe consumption of poison by the deceased Babita Devi. Equally the publicprosecutor failed in his responsibility to guide the investigating officerin that regard. Coming to the magistrate who committed the matter to theSessions Court, he failed to apply his mind and mechanically committed thematter for trial. Public prosecutors and judicial officers owe a greater responsibility to ensurecompliance with law in a criminal case. Any lapse on their part such asthe one which occurred in the instant case is bound to jeopardise theprosecution case resulting in avoidable acquittals. Inefficiency andcallousness on their part is bound to shake the faith of the society in thesystem of administration of criminal justice in this country which, in ouropinion, has reached considerably lower level than desirable.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1613 OF 2008

Chhotan Sao & Another …Appellants
Versus
State of Bihar …Respondent

J U D G M E N T

Chelameswar, J.

1. The two appellants herein were convicted for the offences undersections 304B and 498A IPC by the Additional Sessions Judge VI, Gaya andthe same was continued in appeal by the High Court of Patna.

2. Initially three accused were charged for the offences under sections328, 304B and 498A Indian Penal Code and sections 3 and 5 of DowryProhibition Act on the allegation that they harassed and were responsiblefor the unnatural death of one Babita Devi, the daughter of PW1 and PW6,mother and father respectively. All three accused were found guilty of theoffences they were charged with by the trial court. Each of the accusedwas awarded punishment for seven years for the offence under section 304BIPC and two years for the offence under section 498A IPC. However, thetrial court did not award any separate sentence insofar as the otheroffence of which the accused were charged of.

3. Aggrieved by the judgment of the trial court dated 5th May 2003 all
the three accused carried appeals to the High Court of Patna
unsuccessfully.

4. The instant appeal is carried by only two accused Chottan Sao and
Kamla Devi who happened to be the deceased Babita Devi’s father-in-law and
sister-in-law (husband’s brother’s wife).
We are informed that the third
accused Suhas Sao, husband of the deceased Babita Devi served the sentence
and did not choose to challenge the correctness of the judgment of the High
Court. From the proceedings of this Court dated 24.10.2013, it appears that
the 1st appellant died during the pendency of this appeal.

5. PW8 Surendra Prasad one of the brothers of the deceased Babita Devi
reported on 17.11.1991 to the police station Sherghatty that in the morning
of the same day the deceased was beaten up by a lathi and compelled to
consume poison which resulted in her death.[1] It is also stated in the
report that whenever the deceased Babita Devi came to her parental home,
she used to complain that the accused were harassing her with a demand to
get more money from her parents coupled with a threat of killing her in the
event of her not complying with the demand. On the basis of this
complaint, the Sherghatty police registered a case No.166/91. On completion
of the investigation, a charge-sheet was filed on 2.11.1994.

6. To establish the guilt of the accused, the prosecution examined in
all 13 witnesses including the parents of the deceased (PWs 1 and 6). PW2
and PW3 are sisters-in-law i.e. the wives of two brothers of deceased
Babita Devi; PW5 and PW8 are the brothers of the deceased and PW7 is a
sister of the deceased. All of them were examined to prove two facts (1)
that the marriage of Babita Devi took place some 5 to 6 years prior to her
death and (2) that Babita Devi used to complain that the accused were
harassing her with a demand of dowry. The said evidence was believed by
both the courts. PW4 and PW9 were declared hostile. PW12 and PW13 are the
police officers who investigated the case. While PW13 filed charge-sheet
against the husband of the deceased and PW12 filed charge-sheet against the
other two accused.

7. One disturbing feature of the case is that the doctor who conducted
the post-mortem of the body of Babita Devi was not examined at the trial.
The post-mortem report (Ex.3) came to be marked at the trial through PW11
Dr. Arbind Prasad, a Professor in Forensic Science Department, M.M.C.H.
Gaya, who claimed that he worked with the author (one Dr. Kapildeo Prasad)
of the post-mortem report. Dr. Arbind Prasad further deposed that he could
and did recognise the handwriting and signature on Ex.3 to be that of Dr.
Kapildeo Prasad.

8. The content of the post-mortem is not discussed anywhere in the
judgment of the trial court or in the judgment of the High Court. On the
other hand, at para 20 of the trial court judgment it is recorded as
follows:
“One thing is that from Ext.3, post mortem report it would appear that
viscera was sent for post mortem but that report has not been received
and no apparent injury external or internal has been found on post-
mortem examination of the dead body.”

9. It is on the basis of such scanty medical evidence both the trial
court and the High Court rushed to the conclusion that the death of Babita
Devi occurred “otherwise than under normal circumstances”.

10. It is argued by the learned counsel for the appellants that the
judgment of the High Court[2] confirming the judgment of the Sessions
Court[3] insofar as it recorded a finding that Babita Devi died an
unnatural death is based on no evidence. Therefore, even if it is assumed
for the sake of arguments that both the courts below rightly reached a
concurrent finding that there were demands of dowry by the accused prior to
the death of Babita Devi and that Babita Devi was subjected to either
cruelty or harassment for such a demand, the offence under section 304B is
not established as one important element of section 304B i.e. the death of
Babita Devi occurred otherwise than under normal circumstances, is not
established by any legally admissible evidence on record.

11. On the other hand, the learned counsel for the State argued that in
view of the consistent versions of PWs 1, 2, 3, 5, 6, 7 and 8 that Babita
Devi consistently used to complain of harassment for dowry by the accused,
both the courts below rightly convicted the accused.

12. We are of the opinion that the conviction of the accused undersection 498A calls for no interference as there is concurrent finding byboth the courts below based on evidence that the accused husband and hisrelatives subjected Babita Devi to cruelty as explained under section 498AIPC.[4]13. The only question is – whether the prosecution has succeeded inestablishing the commission of offence under section 304B.
Section 304B
reads as follows:“304B. Dowry death.— (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death. Explanation.—For the purpose of this sub-section, “dowry” shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961). (2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.It can be seen from the section that in order to constitute an offenceunder section 304B, the following factors must be established: 1. That there is a death of a woman within seven years of her marriage; 2. That the death is a result of any burn or bodily injury or occurs otherwise than under normal circumstances; or 3. That the woman was subjected to cruelty or harassment by her husband or his relative is by way of any demand for or in connection with dowry.

14. No doubt the prosecution has adduced sufficient evidence to establishall other facts necessary to prove the offence under section 304B IPCexcept the cause of death. As seen from the trial court judgment there areno injuries on the body of the deceased. Even according to the FirstInformation Report the death was caused due to poisoning which the deceasedwas compelled to consume. In such circumstances, the non-examination ofthe doctor who conducted the post-mortem coupled with the failure toproduce the Forensic Laboratory Report regarding the examination of visceraof the deceased leaves a gaping hole in the case of the prosecutionregarding the nature of the death of Babita Devi. Learned counsel for the
State placed reliance on the decision of this Court in Bhupendra v. State
of Madhya Pradesh, 2013 (3) SCALE 552, to which one of us, Ranjana Prakash
Desai, J., was a party. In the said case, no doubt this Court held that
the production of chemical examination report is not mandatory. The Court
held as follows:
“26. These decisions clearly bring out that a chemical examination of
the viscera is not mandatory in every case of a dowry death; even when
a viscera report is sought for, its absence is not necessarily fatal
to the case of the prosecution when an unnatural death punishable
under Section304-B of the IPC or under Section 306 of the IPC takes
place; in a case of an unnatural death inviting Section 304-B of the
IPC (read with the presumption under Section 113-B of the Evidence
Act, 1872) or Section 306 of the IPC (read with the presumption under
Section 113-A of the Evidence Act, 1872) as long as there is evidence
of poisoning, identification of the poison may not be absolutely
necessary.”

On the facts of that case, this Court reached to the conclusion that there
was sufficient evidence on record to come to the conclusion that the death
was due to poisoning.

15. Coming to the case on hand, the conclusion recorded by both the
Courts below that Babita Devi died an unnatural death is not based on any
legal material on record. None of the witnesses spoke to the factum of
their witnessing Babita Devi consuming poison either under compulsion or
otherwise. The statement in the FIR by PW8 is based on hearsay evidence.
Yaddu Sah of Gopalpur, on whose information PW8 learnt about the death of
Babita Devi, and who reported to the Police, is not examined at the trial.

16. In the circumstances, we are of the opinion that the survivingappellant must be acquitted of the offence under Section 304B. Appeal isallowed to that extent.17. Before parting with the appeal, we wish to place on record ouranguish regarding the inadequacy of investigation, the failure to dischargethe responsibility on the part of the public prosecutor and the Magistratewho took cognizance of the offence under Section 304B. The InvestigatingOfficer who submitted the charge sheet ought not to have done it withoutsecuring the viscera report from the forensic lab and placing it before theCourt. Having regard to the nature of the crime, it is a very vitaldocument more particularly in the absence of any direct evidence regardingthe consumption of poison by the deceased Babita Devi. Equally the publicprosecutor failed in his responsibility to guide the investigating officerin that regard. Coming to the magistrate who committed the matter to theSessions Court, he failed to apply his mind and mechanically committed thematter for trial. Public prosecutors and judicial officers owe a greater responsibility to ensurecompliance with law in a criminal case. Any lapse on their part such asthe one which occurred in the instant case is bound to jeopardise theprosecution case resulting in avoidable acquittals. Inefficiency andcallousness on their part is bound to shake the faith of the society in thesystem of administration of criminal justice in this country which, in ouropinion, has reached considerably lower level than desirable.

..………………………………….J.
(RANJANA PRAKASH DESAI)

...………………………………….J.
(J. CHELAMESWAR )
New Delhi;
December 17, 2013.

-----------------------
[1] “It is respectfully submitted that I had married my sister Babita
Devi 5/6 years above to Son of Chotan Sao namely Subhash Sao of Village
Gopalpur. After marriage the husband of my sister Subhash Sao, her father
in law Chotan Sao and sister/s elder Gotani used to always trouble my
sister because whenever my sister used to come to her father’s house then
she used to always complain about these people and used to say that these
people threaten her to kill her and her in laws used to tell my sister to
bring money. Some days ago only Rs.3000.00 was given and one week ago
Rs.7000.00 was demanded and upon not giving the said money these people on
17.11.91, day Sunday, in the morning beat her with Lathi and forcefully
told her to eat poison and she ate poison helplessly. Suddenly today dated
17.11.91, Yaddu Sah of Gopal Pur went to Gaya and informed that your sister
had died. Then we people came to Gopalpur and came to know that she had
eaten poison on account of forcing by these people whose dead body is lying
in Gopalpur.

Hence it is requested that necessary action be taken against the
accused persons.”
[2] …. As mentioned above it is also clear from the evidence on record
that Babita died unnatural death in the house of her husband.
[3] Para 22. So what I find that even if the necessary report has not
been received the death of deceased Babita Devi has become in such an
unnatural and in a mysterious circumstances which would persuade the court
to come to the conclusion that death was caused otherwise than in natural
circumstances.

(a) any willful conduct which is of such a nature as is likely
to drive the woman to commit suicide or to cause grave injury or
danger to life, limb or health (whether mental or physical) of
the woman; or

(b) harassment of the woman where such harassment is with a
view to coercing her or any person related to her to meet any
unlawful demand for any property or valuable security or is on
account of failure by her or any person related to her to meet
such demand.